Copyright (c) by Emily Storer, 2008. All rights reserved.

The Equal Access Act is a federal law enacted on August 11, 1984 to prevent unequal treatment or discrimination among non-curricular student clubs in public secondary schools.[1] The Act was originally conceived of and sponsored by conservative senators including Senator Orrin Hatch of Utah with the intent of protecting student religious organizations and Bible Clubs in secondary schools.[2][3] However, the Equal Access Act has since been used to defend the rights of a variety of student clubs including, in a number of high-profile cases, Gay Straight Alliances (GSAs). The Equal Access Act reads:

"It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings."[4]

Essentially, if a public secondary school allows for the existence of one or more extra-curricular or non-curricular student groups on school property during noninstructional time (a “limited open forum”), then it must grant equal opportunity to all non-curricular student groups.[5][6]

School boards wishing to disallow GSAs while upholding the Act have tried several ap proaches. Some, such as the school boards in Salt Lake City, UT and Orange County, CA elected to ban all non-curricular clubs rather than allow a GSA to be established (these decisions were later overturned).[7][8][9] Other boards have tried to dispute the definition of a “non-curricular student group,” arguing unsuccessfully that Chess Clubs or community service organizations are directly related to school curriculum and thus have a right to exist when a GSA does not.[10] Still other schools and/or school boards have tried to claim that they have the right to discriminate against GSAs because the controversy surrounding them might be overly disruptive in an educational environment. However, the Act makes clear that it is unlawful to prevent equal access to a club based on a “hecklers’ veto”.[11][12]

A school will not lose federal funding if it fails to comply with the Equal Access Act; however, an aggrieved party or parties may bring suit in a U.S. district court to compel a school to observe the law.[13] The school may then be liable for damages and the attorney’s fees of the opposing party. In many cases, students have been instrumental in bringing violations of the Equal Access Act to court.[14][15][16]

References

1. James Brooke, “To Be Young, Gay, and Going to High School in Utah,” New York Times, February 28, 1996, The Gay Rights Movement, Ed. Vincent J. Samar, (Chicago: Fitzroy Dearborn Publishers, 2001) 122. “Gay-Straight Alliances,” www.glbtq.com/social-sciences/gay_straight_alliances.html (November 25, 2007).
2. James Brooke, “To Be Young, Gay, and Going to High School in Utah,” New York Times, February 28, 1996, The Gay Rights Movement, Ed. Vincent J. Samar, (Chicago: Fitzroy Dearborn Publishers, 2001) 122.
3. www.glbtq.com/social-sciences/gay_straight_alliances.html
4. “ED Equal Access Act,” United States Department of Justice, www.usdoj.gov/crt/cor/byagency/ed4071.htm (November 25, 2007).
5. “ED Equal Access Act,” United States Department of Justice, www.usdoj.gov/crt/cor/byagency/ed4071.htm (November 25, 2007).
6. “Defending Gay/Straight Alliances and Other Gay-Related Groups in Public Schools Under the Equal Access Act,” Lambda Legal, www.lambdalegal.org/our-work/in-court/other/defending-gaystraight.html (November 25, 2007).
7. Brooke, 122-23.
8. www.glbtq.com/social-sciences/gay_straight_alliances.html
9. Michael Connolly, “The Safe Schools Movement: A Multigenerational Social Justice Movement,” Bay Windows, November 8, 2007, www.baywindows.com/index.php?ch=columnists&sc=generation_us&sc2=&sc3=&id=52114 (November 25, 2007).
10. www.lambdalegal.org/our-work/in-court/other/defending-gaystraight.html
11. www.lambdalegal.org/our-work/in-court/other/defending-gaystraight.html
12. www.usdoj.gov/crt/cor/byagency/ed4071.htm
13. "The Equal Access Act and the Public Schools: Questions and Answers,” August 13, 2004, Christian Legal Society, www.clsnet.org/clrfPages/pubs/pubs_equal2.php (November 26, 2007).
14. www.glbtq.com/social-sciences/gay_straight_alliances.html
15. www.baywindows.com/index.php?ch=columnists&sc=generation_us&sc2=&sc3=&id=52114
16. Brooke, 123.